Mixed Rules/Distinctions Flashcards
1
Q
Why can defenses be raised against assignee?
A
Any contract defenses can be raised against assignee because he stands in the shoes of the assignor.
2
Q
When can assignor not assign contract?
A
Cannot assign if assignment would (1) materially change duties or (2) involve personal judgment and skill.
3
Q
When can assignor modify contract?
A
Any time unless the beneficiary’s rights have vested. If they have vested, assignor must have assent.
4
Q
There is contractual right to set off when:
A
The contract expressly states.
5
Q
State the effect of an anti-assignment provision.
A
It does not invalidate an assignment.
6
Q
To what does the FRE not apply?
A
Sentencing hearings.
7
Q
Is a withdrawn plea admissible?
A
No. A plea later withdrawn is not admissible in any civil or criminal proceeding.
8
Q
When is prior identification admissible?
A
Declarant must testify at trial and be subject to cross examination.
9
Q
Effect of exercising dominion over goods?
A
When offeror exercises dominion over goods, he has accepted them unless there is other contrary intent.
10
Q
Effect of “per our discussion” language in contract:
A
Reference to document outside of contract means that contract isn’t complete agreement, so parol evidence is not barred.
11
Q
Prior/contemporaneous statements in contract:
A
Are always allowed to explain and interpret the contract.
12
Q
What effect does the parol evidence rule have on collateral agreements?
A
Parol evidence rule does not bar collateral agreements that are different from the contract at issue.
13
Q
Describe seller’s right to cure.
A
The seller has a right to cure, even after failing to deliver perfect tender, if goods are rejected at time of delivery.
14
Q
Must offeror always comply with offeree’s demand under a requirements or output contract?
A
No. If the demand is disproportionate, offeror need not comply.
15
Q
Effect of bankruptcy on anticipatory repudiation:
A
The act of filing for bankruptcy provides justification to suspend performance.
16
Q
Effect of continuing to use a known defective product on products liability action:
A
If plaintiff discovers, knows, or is warned of a product defect and continues to use the product, he assumes the risk.
17
Q
Vicious watch dog:
A
Probably a wild animal. Thus, owner is subject to strict liability.
18
Q
What is the MPC test for insanity?
A
A person is not criminally responsible if he lacked substantial capacity to appreciate the criminality of his conduct.
19
Q
What is the effect of “change of heart”” after defendant takes another’s property?
A
A later change of heart after intention to deprive another of his property does not negate larceny.
20
Q
Double Jeopardy and different crimes:
A
It is not a violation of Double Jeopardy to try a defendant separately for different crimes.
21
Q
Need defendant’s attorney object to preserve plain error?
A
No. A plain error cannot be waived.
22
Q
Does government need to disclose identity of CI?
A
No, if disclosure would endanger the CI.
23
Q
Is taking fingerprints a search under the 4th Amendment?
A
No. It is not a “Search.”
24
Q
When is using a dog near another’s home a “search”?
A
Using a dog to drug sniff around and near a front door is a search; the cops need PC and a warrant.
25
What is the burden of proof for affirmative defense in a criminal case?
The defendant must prove affirmative defense by a preponderance of the evidence.
26
Rule against acquiring incriminating information when defendant has been formally charged:
Police may not deliberately acquire incriminating information from suspect who has been formally charged UNLESS his attorney is present.
27
Effect of defendant knowing that lost property belongs to another:
If defendant KNOWS property belongs to another and does not return it, he has committed larceny.
28
Application of necessity to homicide:
Necessity does NOT apply if you are killing someone to avoid your own death.
29
Aiding/abetting and mere presence:
Mere presence alone is not aiding and abetting.
30
Is voluntary intoxication a defense to arson?
No.
31
Limit on search of car for weapons, even if PC:
The PC is limited to the weapon the cop has PC for; cop cannot look inside a wallet to find a weapon because it would not fit there.
32
When does 6th Amendment right to counsel attach?
As soon as defendant is indicted. It does not need to be invoked.
33
When does 5th Amendment right to counsel attach?
Before charges are filed. Defendant must invoke it.
34
When is mistrial permitted?
If defendant does not object, then government may retry him unless there is concern of necessity or justice.
35
Does a corporation receive a 5th amendment privilege?
No! A corporation is not a citizen.
36
When is notice by publication allowed?
When names and addresses of purchasers are not available. But a class representative cannot waive notice on behalf of the class.
37
When is removal improper on the basis of jurisdiction?
When there is no federal question or diversity jurisdiction.
38
Where must case be heard if admiralty action?
If the action seeks an admiralty remedy, it MUST occur in an admiralty court.
39
AIC Requirement
Must EXCEED, not merely be equal to $75,000.
40
What must court do if improper venue?
Federal court MAY transfer where venue is proper if it chooses, but it MAY NOT keep case in improper venue.
If the case is in state court, the court must dismiss it, because the court cannot transfer the case to a different state court.
41
Fraudulent-Joinder Rule
Defendant cannot remove a case if there is no chance that the plaintiff can establish a COA in state court.
42
Divorce in federal court:
Federal courts DO NOT have SMJ over divorce actions.
43
To implead a party:
You must assert that they are or may be liable for some or all of the claim against you.
44
When is destruction of ESI not sanctionable?
When the deletion does not occur in anticipation of litigation.
45
Does appellate court have interlocutory jurisdiction over choice of forum decision?
No, because such a decision is reviewable on appeal from final judgment.
46
When must objection to service be made?
In the motion to dismiss, or it is waived.
47
What are the elements of "private nuisance"?
(1) conduct that (2) substantially and (3) unreasonably interferes with (4) another's use and enjoyment of land.
48
When is interference with land "substantial" for purposes of private nuisance claim?
When it would be substantial according to a person with normal sensibilities in the community. An abnormal sensitivity is not enough.
49
When is oral contract relating to real property an exception to the SOF?
When the person seeking to prove existence of a contract shows partial performance.
50
Three Ways to Show Partial Performance Exception to SOF
(1) Payment of all or part of purchase price; (2) possession of property; (3) Substantial improvements made.
51
List the Acts/Words of Legal Significance (Hearsay Exception)
Contract offer; contract acceptance; making of a gift.
52
Can claimant A aggregate damages with claimant B to reach 75 AIC requirement?
No. A claimant may not combine his claim with another claimant.
53
When is an oral agreement sufficient to settle a real property boundary dispute?
When the parties accept the property line for a sufficient amount of time, such as 17 years.
54
What warranties does a general warranty deed contain?
Covenant of seisin; right to convey; covenant against encumbrances, covenant of quiet enjoyment; and covenant of warranty.
55
Can the grantee sue the original grantor for damages if third-party claimant disturbs possession and enjoyment?
Yes, if the covenants in the general warranty deed run with the land.
56
Can a school district reassign students based on race to correct de facto segregation?
No. School may not reassign on the basis of race to achieve racial balancing.
57
Can co-conspirators be held liable for other crimes committed by the perpetrator?
Yes. But the additional crimes must be foreseeable outgrowth of the original crime and in furtherance of the conspiracy.
58
Explain how a claim relates back when a new party is added to the action.
It will relate back when the new party knew or should have known that an action would be brought against it but for mistake.
59
When can multiple plaintiffs join together in one action?
If (1) the claim arises out of same T or O; and (2) any question of fact/law is common to all plaintiffs.
60
Admissibility of expert testimony when based on colleague's opinion
Expert may NOT testify when she merely serves as conduit for her colleague's analysis and not offering her own opinion.
61
Are prosecutor comments on defendants' silence an automatic reversible error?
No. Such comments are subject to harmless error analysis. Harmless error will be found if prosecutor commented on lack of evidence, but not specifically on failure to testify.
62
What is required for "ouster"?
More than using property exclusively and paying taxes; there must be some act in direct contravention of co-tenant's rights.
63
Is inability to use a purchase item sufficient for constitutional standing?
Yes, when plaintiff purchased item that he cannot use as a result of ordinance/law.
64
Define "last clear chance" doctrine.
Defense to claims of contributory negligence; a negligent plaintiff can recover when the last human wrongdoer failed to avoid the accident.
65
What can a court not inquire into regarding religious beliefs?
Court may not inquire into reasonableness or sincerity of religious belief.
66
Define "bona fide purchaser without notice"
Someone who pays value and takes without any notice, including constructive notice that someone else owns property.
67
When does mortgage interest terminate?
It will terminate after death.
68
Explain Majority Equitable Conversion Rule.
Once a binding contract is executed, the risk of loss is on the buyer.
69
Can right of redemption be waived?
No. Mortgagor cannot waive the right of redemption when a mortgage is created.
70
For what can peremptory challenges not be used?
Race or gender.
71
Explain the spousal communication privilege.
Extends to confidential communications made during valid marriage. BOTH spouses must waive; thus one spouse can prevent the other from testifying.
72
Explain the right of survivorship.
When one joint tenant dies, ownership of the entire property passes to surviving tenant with nothing passing to heirs of decedent.
73
State the requirements of prior inconsistent statement.
(1) declarant is present at trial; and (2) PIS give under oath during prior proceeding.
74
When can judge admit evidence of suspect's conviction for crime involving dishonesty?
To show tendency to make false statements, regardless of whether it is a misdemeanor or felony.
75
Describe landowner liability for activities causing damage to unimproved land.
Landowner is strictly liable!
76
Does SOF apply when plaintiff is seeking specific performance?
No, SOF doesn't apply if plaintiff seeks specific performance, instead of breach of contract, like installation of windows.
77
When will federal court hear an appeal of interlocutory order?
(1) the order conclusively determines the disputed question; (2) resolves an important issue completely separate from merits; (3) and is unreviewable on appeal from final judgment.
78
Contingent remainder:
(1) taker is ascertainable; (2) conditions precedent are met.
79
Shifting executory interest:
interest becomes possessory upon natural termination of prior estate.
80
Springing executory interest:
third party takes action to cut short prior estate.
81
To what does RAP apply?
Executory interest
Contingent remainder
Vested remainder subject to open
82
Easement in gross:
benefits a person and not land; there is NO dominant estate.
83
Easement appurtenant:
There is a dominate estate; it benefits land and not a person
84
Profit:
non-possessory interest that allows you to take materials from land
85
Requirements for implied easement:
(1) common ownership before severance
(2) prior use
(3) use was apparent
(4) reasonable necessity
86
Requirements for easement by necessity:
(1) common ownership before severance
| (2) strict necessity
87
Describe how prosecution may rebut defendant's character evidence.
It may only rebut evidence through reputation or opinion. It cannot use specific acts.
88
Explain the spousal-testimonial privilege.
It ends at divorce.
It only allows the spouse being called to testify to refuse. The defendant spouse cannot use it to prevent the other from testifying!
89
What is the former testimony exception to the hearsay rule?
If the former testimony was given under oath and the objecting party had a chance to cross-examine the party in the earlier proceeding, it is admissible.
90
Why can witness be asked if he had heard "whether the defendant had often engaged in fights and brawls" ?
Because it is relevant to whether the witness had knowledge of the defendant's reputation in the community for violence.
91
Who decides whether a conspiracy existed and whether defendant and declarant were members of conspiracy?
The judge decides this question of fact because it is necessary to decide whether to admit an alleged declaration of conspiracy.
92
Can specific instances of conduct of witness be proved by extrinsic evidence?
No. Specific instances of conduct to attack or support witness credibility cannot be proved by extrinsic evidence unless conviction of crime.
93
How must photograph be identified?
Witness must testify that the pertinent parts of the picture are reasonable and accurate representation of the subject pictured.
94
Why can Congress regulate property in the District of Columbia?
Because it has the EXCLUSIVE enumerated power to legislate over D.C. and to govern other federal property.
95
How can power of eminent domain be delegated?
Only directly to private enterprise for a public related use or activity, as long as other requirements of 5th Amendment "takings" clause are satisfied.
96
Explain what the 15th amendment prohibits.
The right to vote cannot be denied by the evasive device of a party primary conducted as activity of private club if that election is a "feeder" into the election system.
97
Describe effective acceptance rule.
1. communication to offeror;
| 2. must mirror terms of offer if jurisdiction follows mirror image rule.
98
Additional terms become a part of contract between merchants, unless:
1. offeror expressly limits acceptance to terms of offer;
2. additional terms would materially alter contract; OR
3. offeror objects in a reasonable time.
99
When is anticipatory repudiation established?
1. repudiating party announces he is repudiating;
| 2. the repudiating party commits an affirmative act that = repudiation.
100
To what is buyer entitled if he doesn't cover?
Contract-market differential.
101
List the basic elements of contract:
1. offer
2. acceptance;
3. consideration.
102
When can contractual duty not be delegated?
If it:
1. involves individual skill/judgment;
2. would materially change the contract.
103
When is performance excused for impracticability?
Unforeseen difficulty made performance:
1. prohibitively expensive; or
2. extremely burdensome
104
When is performance excused for impossibility?
If:
1. goods are destroyed;
2. performance is illegal;
3. performance is prevented by non-foreseeable event which was basic assumption of K.
105
Incidental beneficiary:
3rd party who happens to benefit from contract, but not intended to benefit.
He has no right to enforce contract.
106
Intended beneficiary:
3rd party intended to benefit from contract when entered.
He has right to enforce contract.
107
When is liquidated damages clause enforceable?
1. Not penalty;
2. Proportional;
3. Reasonable at time of contracting.
108
Explain what happens if contract does not address what happens in the event of a breach:
Court will treat it as material breach or substantial performance.
If substantial performance > the non-breaching party must still perform.
If material breach > non-breaching party need not perform.
109
Unilateral contract:
Offeror makes offer looking for action/performance.
110
Bilateral contract:
Offeror makes offer looking for a promise.
111
What is effect of counter-offer?
Simultaneously rejects and makes an offer.
112
Elements required for enforceable option contract:
1. offer;
2. subsidiary promise to keep it open;
3. valid mechanism to enforce, such as consideration.
113
"Part performance" test for land-sale contract:
1. taking possession; or
2. substantial improvements; or
3. paying part of price.
114
What contracts are subject to SOF?
1. Land-sale;
2. over $500;
3. can't be completed in 1 year;
4. marriage;
5. surety;
6. executor/administrator
115
Explain SOF exception for goods specifically manufactured:
1. seller began to substantially manufacture;
| 2. seller committed to procure the goods.
116
What does parol evidence rule not apply to?
Collateral/subsequent agreements
117
When is installment contract breached after only one shipment is delivered?
If the breach with respect to that shipment substantially damages the buyer's business. That = substantial impairment of the whole.
118
When can executive officer be removed only for cause?
When he performs quasi-judicial functions. Then, POTUS must have cause to remove him.
